English courts are increasingly taking prenuptial agreements into account when deciding the division of assets on divorce, although they are currently not legally binding. This means a well-written prenuptial agreement can potentially protect you from unnecessary conflict and confusion if you and your spouse later separate.
As well as the option of creating a prenuptial agreement (or ‘prenup’) before you marry, you also have the option of making a postnuptial agreement (‘postnup’) after you are already married. There are also equivalent agreements for civil partnerships, sometimes referred to as pre- and post-registration or pre- and post-civil partnership agreements.
The negotiation and drafting of such agreements need to be handled with care. Expert advice is required to give the agreement the best chance of being upheld by a court and to ensure that you and your partner understand its implications.
Our family lawyers can help you with all aspects of prenuptial and postnuptial agreements, including drafting an agreement, reviewing an agreement you have been asked to sign by your partner and negotiating the details of an agreement. Our role often includes advising on how to broach what is potentially a difficult subject with sensitivity.
As well as the legal process involved, dealing with prenups and postnups is often emotive and sensitive, so we will provide you with the necessary practical guidance and emotional support to make sure you get a fair agreement that protects your long-term interests.
Looking for clear, expert advice on making a prenuptial agreement of postnuptial agreement? Please contact our approachable and highly experienced family law solicitors in Clapham and Hammersmith today.
Common questions about prenups and postnups
Are prenuptial agreements legally binding?
As stated above, pre and postnuptial agreements are not currently legally binding under English law, but they will often be the starting point in the event the marriage breaks down in a divorce.
In order for a prenup or postnup to be upheld by a family court, there are procedural safeguards that should be followed when making the agreement:
- The agreement must be in writing.
- The agreement must be fair to both parties.
- Both parties must make full disclosure of their assets.
- Neither party must be under pressure to sign.
- For prenups, the agreement should be signed no less than 28 days before the marriage takes place.
- Both parties must take independent legal advice before signing.
Do I need a prenuptial agreement?
This depends on you and your circumstances. While people often associate prenups with the superrich, they are increasingly used by people of all levels of wealth and from all sorts of backgrounds.
Prenups can provide protection to someone who has been through a divorce already and wants more certainty in the event this happens again, or to safeguard family money for future generations. They can also be useful where there is a big difference in income and/or assets between the couple getting married.
When should I consider making a postnuptial agreement?
If you are already married and want to move forward in your relationship without worrying about what might happen if the marriage breaks down, you might consider making a postnuptial agreement to clarify financial issues.
Postnups are often used where there has been a significant change of circumstances since you married, such as that you have had children, started a business or inherited a substantial amount of money.
Can I get a postnuptial agreement if I am planning to get divorced?
If you are thinking of getting divorced and want certainty over the financial and practical arrangements for your separation, you could enter into a 'separation agreement' with your spouse. This allows you to agree how your finances will be divided, as well as where your children will live (if you have children) and any other issues you want clarification over.
Our family law expertise
Having specialised in family law for many years, our team have exceptional expertise with a wide range of family law matters, including prenuptial agreements and postnuptial agreements.
We have particular expertise in advising High Net Worth Individuals, including entrepreneurs, sports people and international businesspeople. This includes advice on protecting international assets and all aspects of international family law.
Our solicitors have been commended in leading client guides The Legal 500 and Chambers & Partners. Antonia Mee has been called a “hard-working, dedicated and experienced practitioner” with an “impressive intellectual prowess, matched with real humanity and compassion”, while Peter Burgess is recognised as “an extraordinarily sensitive, patient and accessible person” and "a very skilled negotiator".
Our team includes a number of very active members of Resolution, the network for family lawyers. This reflects our commitment to removing unnecessary conflict from family law, which is something prenuptial agreements and postnuptial agreements can be very effective in achieving.
Burgess Mee is independently regulated by the Solicitors Regulated Authority (SRA).